labour replies

The Finale of the finale: 

Labour Replies 

Technically, this is both Labour’s defence to the Government’s Section 1 defence and Labour’s Reply to the Government’s defence on unconstitutionality. But since the parties don’t care – they have agreed to have Labour deal with them together – then I guess neither should we.

We begin with Garth Smorang and Labour’s response to the Government’s Section 1 defence …


Roly-Poly Penner. That’s who all this reminds me of. Manitobans of a certain vintage will know him as the Honourable Roland Penner, MLA and Attorney-General for most of the 1980’s. But to me, he will always be Roly-Poly Penner, the man who introduced me to the competing contrasts in Canadian Constitutional Law – part one: the tiresome tedium of water-tight compartments in our distribution of powers, and part two: the wonders of the wonderful Canadian Charter of Rights and Freedoms. (Although Professor Penner was a little rotund at the time, “Roly-Poly” actually came from his dancing, always on significant display during law school functions.)

The whole water-tight compartments garbage made me want to scrap the whole lawyer thing and take up watercolour painting. What a stupid thing to waste time fighting over and what a stupid idea. The Titanic had water-tight compartments, and look at how it worked out for them. Lord Atkin, the English judge who came up with this metaphor, did so in 1937, 25 years after the Titantic proved how disastrous a foolish faith in water-tight compartments can be. (The Privy Council in England was the appeal court of final resort at the time, with the power to overrule the Canadian Supreme Court. Canada didn’t abolish Privy Council appeals until 1949.) Figures. What would an English judge know about the division of powers in a federal system? They didn’t have one.

Oh-oh. Now I’m not only flashing back to Roly-Poly Penner, I’m channeling him, telling tangential stories. But trust me, during the first half of Constitutional Law, Roly-Poly’s penchant for telling his stories (and he had so many great ones) was not only welcomed, our class had a secret pact to make it happen. Someone, a different someone each time, was assigned to prompt at least one story from Roly about halfway through the class. It was the only way to get through three hours of double Constitutional.

Anyway, let’s get back to Garth, because this part is really good. And thorough. Whereas the government’s written submissions on the Section 1 defence take up about seven pages (pp. 49-56 in the Government’s Written Argument), Garth’s takes 55 (see theirs in full in Labour’s Reply Brief, pp. 44-99).


Here is the Oakes Test again, for your reference:

the oakes test

To determine whether a law includes  reasonable limits that can be demonstrably justified in a free and democratic society, you ask:

  1. Is the legislative goal pressing and substantial? That is, is the objective sufficiently important to justify limiting a Charter right?
  2. Is there proportionality between the objective and the means used to achieve it? Proportionality has its own three part test:

(a)   Rational Connection: The limit must be rationally connected to the objective. It must not be arbitrary, unfair or based on irrational considerations.

(b)   Minimal Impairment: The limit must impair the right or freedom no more than is reasonably necessary to accomplish the objective. The government will be required to show that there are no less rights-impairing means of achieving the objective.

(c)   Final Balancing: Is there proportionality between the effects of the measure that limits the right and the law’s objective in terms of the greater public good?

And this is how Garth Smorang introduced it:


The Charter guarantees that Canadians will always have the fundamental rights and freedoms it sets out. Section 1’s requirements are therefore exclusive and specific.

A law can only be excused by Section 1 where its need is demonstrably justified, as opposed to merely being a logical way to solve a problem.

Section 1 is based on the premise that first, a right has been violated, and those rights should be upheld. Therefore, only exceptional criteria will justify a Charter violation. A strong evidentiary foundation, with cogent and persuasive evidence is generally required.

Canadian society is to be free and democratic. Thus, the court must be ultimately guided by essential values and principles that include a commitment to social justice and equality, respect for group identity, and faith in institutions which enhance the participation of individuals and groups in society.

(Indeed. That’s why we have the Charter. And that’s why it’s great. smile)

The bar is high, and the Oakes Test must be rigorously applied – is it demonstrably justified?

This is not a mechanistic application, but rather a careful analysis having regard to the factual and social context of each case.

The Supreme Court in B.C. Health Services said that Section 2(d)’s Freedom of Association may permit interference with the collective bargaining process, on an exceptional and typically temporary basis, in situations such as essential services, vital statement administration, clear deadlocks, and national crisis.

Exceptional … essential … vital … crisis … clear … these are the words used to describe Section 1.

Garth speaks these last words with a hypnotic rhythm, punctuating each word with his hands cupped together and laying them down as though he is planting seeds of persuasion. It’s working. I’m mesmerized.


Smorang begins with part 1 of the Oakes Test: was there a pressing and substantial objective?


The law must have a pressing and substantial objective, and the bar is high. A Charter right that is being violated.

The objective must be sufficiently important enough to warrant overriding the guaranteed democratic rights of Canadians.

The Government of Manitoba told us what the objective was in paragraph 34 of their Amended Statement of Defence.

(Oh-oh, Garth is reminding Justice McKelvey that their pressing and substantial objective was always lot broader than Heather’s limited “upward pressure on wages”.)

The Government claimed that they needed to restore public confidence in the economy. There was zero evidence of that.

They claimed that they needed to sustain the level of public services that Manitobans have come to expect. Zero evidence of that.

They talked about balancing the budget in eight years, but led no evidence to demonstrate how the PSSA would help them do that.

The only thing the Government has shown is that the PSSA will reduce their costs. But as set out in pages 48-51 of our Reply Brief, the courts have consistently held that costs and budgetary considerations are not enough.

As the Supreme Court pointed out in Newfoundland v. N.A.P.E., there are always budgetary constraints, and always other pressing government priorities, and so the courts should view these claims with strong skepticism. To do otherwise would devalue the Charter. This is distinct from financial emergencies in a true crisis.

In B.C. Health Services, the court said that to the extent that the objection of the law was to cut costs, that objective is suspect as a pressing and substantial objective.

Exceptional … severe … exigency … extreme. This is the kind of financial crisis that will qualify.

(He’s hypnotizing me again.)

While it is true that the ERA (the Expenditure Restraint Act) was upheld by a number of courts, this occurred in the context of, as the Ontario Court of Appeal described it in Gordon, the most serious global recession since the Great Depression, negatively impacting Canada and the world.

In OPSEU, Mr. Justice Lederer said that the Government of Ontario was able to establish a pressing and substantial financial objective, given the dire context of the financial situation in Ontario, or in other words, a true financial crisis.

As noted in these cases, the Supreme Court and courts across Canada have repeatedly emphasized that the specific factual and social context plays a key role in justifying a limitation on a Charter right under Section 1.

Now THAT’S how you make a constitutional argument. Yummy-nummy.

So, let’s apply that to the PSSA


The stated rationale for the PSSA is controlling costs, but costs cannot qualify unless there is a financial emergency.

There is no evidence of a financial crisis, and no evidence that this is a way, or a good way, to correct the deficit. The Government’s own expert, Dr. Di Matteo, testified that economies are like oil tankers, turning slowly, and thus small corrective measures should be taken now, before the Province gets to an emergency. While this may be true, Dr. Di Matteo agrees that we are not in a financial emergency now.

Manitoba is in the middle of the pack when it comes to debt. This is not a serious case of economic downturn, loss of investment, job cuts, and a forecast of negative growth. We are not like Ontario, which is the largest sub-national borrower in the world. This is nothing like what happened during the Great Recession of 2007/2008. Manitoba survived that, thanks to its robust economy.

In these kinds of cases, courts will sometimes defer to the government and assume that they had good financial reasons, but not always …


A court will often take a government at its word that there are serious financial concerns, unless these claims are being made in bad faith.

Does the Government of Manitoba make this claim of a pressing and substantial financial objective with bona fides (in good faith)?

They reduced taxes in 2017, and in 2018, made the largest tax reduction in Manitoba’s history. Dr. Beaulieu testified that this is in the wrong direction. This is not all hands on deck

They campaigned on a promise to reduce the PST, even though it was already the third lowest in Canada. In their own words, a 1% increase in public sector wages represents $100 million. If you do the math, without the PSSA, they couldn’t pay for these tax cuts.

Paying for tax cuts with wage cuts to public sector workers puts a disproportionate burden on them, and the Government is planning to do more in the next fiscal year.

The Rainy Day Fund is the Province’s savings account. And they keep adding millions to it instead of paying workers, and/or paying off the deficit and paying down the debt.

It makes no sense to be in deficit spending, while at the same time, putting money into savings.

The Government claims that its significant deficit is a pressing and substantial concern. But this is not credible. They have been grossly overestimating the size of the deficit, sometimes by almost 70%.

While the administration decides what ranges of numbers are acceptable, it is the Minister of Finance who decides which number to pick, which means there is political involvement in the ultimate choice.

And the evidence shows that the politicians have been consciously and deliberately manipulating the budgets to overstate the deficit.

(Oh-oh. Here comes all that stuff from the testimony of Aurel Tess.)

By taking out the Workers Compensation Board and the MASC Trusts, the Government of Manitoba doubled the stated deficit from what it actually was, overstating the deficit by $347 million. And in 2017/2018, Manitoba actually had a surplus of $9 million, even while the government was claiming a deficit of $163 million.

(The Government of Manitoba has not only been manipulating the deficit. They have been lying to us about how big the deficit is.)

And now for the finale on pressing and substantial objective …


The court must decide whether in this context, the Government has demonstrated that they had a pressing and substantial objective to justify the unconstitutional aspects of the PSSA.

And the court must analyze such claims with a rigorously careful analysis.

But what is the goal of the PSSA? We don’t know. If it was reducing the deficit, then the Government wouldn’t be overstating the deficit, or putting money into the Rainy Day Fund, or reducing taxes.

(Yeah. You cannot claim goals if you taking steps in exactly the opposite direction. Or, if you do, you look like fools.)

The Government is relying entirely on financial considerations to establish a pressing and substantial objective. Context is key, and in this context this claim is not credible.

At the same time that the Government of Manitoba’s actions were destroying the agreements between UMFA and the University of Manitoba in 2016 and 2017, and stalling all bargaining with Manitoba’s teachers in 2018, the financial situation was already improving so much that they were out of deficit and into a surplus of $9 million by 2018.

The only possibly legitimate financial goal would be to balance the budget in eight years, by 2025. Leaving aside the fact that the government is already in surplus, they would have to now convince you (Justice McKelvey) that this far off goal with so many possible contingencies would justify such significant interference in present collective bargaining, one that by design, negatively impacts the lives of so many Manitobans.

Pressing and substantial objective? There isn’t one.

Yep. I agree. They should lose here. But, if they don’t there’s always part two of the Oakes Test.


A reminder. Part two of the Oakes Test has three separate sub-parts, and like all good advocates, Garth takes them one by one.

1. Rational Connection


A rational connection between the objectives and the measures chosen means something that is carefully designed, not something that is arbitrary, unfair, and irrational (like the PSSA).

The PSSA fails the rational connection test because:

1. The means chosen are arbitrary

2. There is no causal link between collective bargaining and upward pressure on wages.

3. There was no calculation or even an estimate of costs savings.

4. There was no financial analysis of the costs of public sector wages.

5. The Government had all this information available to it, but didn’t bother using it.

As the Supreme Court of Canada stated in OPSEU, there is a limit to the extent that a government can establish a rational connection based on reason and logic alone. The measures which limit the right should not be arbitrary and should be based on care of design. In the OPSEU case they were not.

And the measures in the PSSA, weren’t either. There was no care of design. The Government just copied Nova Scotia’s PSSA.

The Government has failed to establish any causal link whatsoever between their supposed objective and limiting collective bargaining. And when Labour leaders asked Mr. Irving why these financial goals couldn’t be achieved through collective bargaining as they had been before, he lost his temper.

Yet, the evidence shows that the Government of Manitoba has been able to obtain 0% wage increases through collective bargaining in the past.

The Minister of Finance did not calculate or even estimate the effect of the PSSA on the Government’s finances. Without this information, how can you make a logical conclusion that there was a rational connection between the PSSA and it so-called goals?

Contrast this with Gordon, where there was significant evidence of thoughtful design that was not hasty or ill-considered. They followed the data. They consulted studies. They chose from a variety of carefully considered options.

Here, there was distinct a lack of care in design. There weren’t any parameters set, like “make sure we save x amount of dollars”. They had no data to consider.

How did the Governement choose the 0.75%, 1% increases for years three and four? – “I dunno. What should they be? Yeah, that sounds good.”

(He, he, he. I’m not the only one that makes fun of the Government’s thought process, or lack thereof.)

There was no comparison between what the situation would be with the PSSA as opposed to without it.

They had information available to them. They just didn’t bother using it.

The court in MPAO quoted RJR MacDonald in finding that:

Before the courts can override constitutional rights, there must be a reasoned demonstration of the good which the law may achieve in relation to the seriousness of the infringement.

(Here, here.)

And finally, as Justice Lederer said in OPSEU

Fiscal concerns DO NOT give governments an unrestricted licence to deal with the economic interests of its employees.

As it’s late in the day, Garth says that’s a good place to stop. We will finish up with minimal impairment and the rest of Labour’s Reply tomorrow.

2. Minimal Impairment

We start with an overview.


It is a basic principle of the Oakes Test that the measure must interfere with the constitutional right a little as reasonably possible.

And, as explained in detail in RJR MacDonald, anyone attempting to rely on a Section 1 defence must show that the measures were specifically tailored to be as minimally impairing as possible, to go no further than necessary.

If a government fails to explain why a less intrusive measure wasn’t used, they will fail. If they don’t show why only the fully intrusive measure they used will work, with evidence to support it, they will fail.

(All this comes from RJR MacDonald where, you might recall, the Government of Canada had a total ban on cigarette advertising and forced producers to put negative health warnings on the packages, but failed to put in evidence as to why only a total ban would work, or how the warnings would help them achieve their goal of reducing smoking.)

A government must show, not only that they turned their mind to less intrusive measures, it must show that they chose the least intrusive measure they could.

The Government of Manitoba has the onus to prove all of this to support a claim of minimal impairment, and without any evidence, this onus cannot be met.

Yeah. When all they did was cut and paste from Nova Scotia, I’m not sure the Government of Manitoba should even bother pretending that there’s any evidence they gave serious consideration to whether the PSSA was minimally impairing.

But Justice McKelvey (and the higher courts, should this garbage get appealed) have to rule on this issue because it’s part of the Section 1 defence, so Garth can’t skip it, or just say – really? and onwards he goes …


Let’s apply all this law to the PSSA.

The PSSA was not specifically tailored to Manitoba’s financial situation. It was bought off the rack.

There is no evidence that less intrusive options were considered. There is no evidence that they ever considered any other options at all.

All the Government did was say “hmmm, that law in Nova Scotia looks good, let’s go with that.”

All of the case law requires the Government to at least consider whether less harmful, less drastic measures would be enough. And, it isn’t just less damaging, it has to be the least damaging measures possible.

All that implies that the Government actually has to consider other options, and have evidence to show why those other options weren’t good enough.

My friend (Leonoff) argued that this is limited to other legislative options. But that is not so. The case law is clear that all other options are relevant, not just other ways to legislate.

Here, there is no evidence whatsoever that the Government of Manitoba considered any other alternatives at all, legislative or otherwise. No one testified about it. Nowhere in any of the Budget Speeches or other governmental communications did anyone refer to any other options.

There always one path and one path only – legislation. They borrowed from Nova Scotia in both strategy and content.

As we learned from the testimony of Kevin Rebeck, they had already drafted the PSSA even while they were stringing the Fiscal Working Group along. They allowed the unions to think that the all options were open, and everything was on the table, when all they were ever going to do was legislate. The Public Services Compensation Committee said legislation only, get it done, and get it done fast.

Nowhere is this clearer than comparing what took place on March 8 and March 9 of 2017. On March 8, the Public Services Compensation Committee met to consider the final draft of the PSSA. According to the Executive Summary prepared by Mr. Irving and Mr. Stevenson, everything was already prepared and in place. The next day, when the same two people met with Labour leaders, they were still saying – legislation is only one of the options.

To us, this is good evidence of a lack of good faith, good evidence that the government never intended to do anything except legislate. And, good evidence that the Fiscal Working Group was a sham throughout, from the first time it met on January 5, 2017 to the last.

This government never considered the possibility of bargaining for 0% wage increases. They wanted certainty and were determined to legislate them anyway.

(This reminds me of something. Why wouldn’t the Government try to negotiate for 0% increase, when history has shown that it is certainly possible? Because, if they tried that at the table, they would have to have enough proof to convince the unions that the wage freezes were necessary. But if you legislate, you don’t have to.

Problem is, though, if you legislate without evidence, then you end up in a court challenge where you look incompetent and foolish, as well as venal because you forced 0% wage increases without bothering to think whether you had any good reasons for needing them.)

The Government forced employers to follow the PSSA by threatening to reduce their funding, but did it in secret so that they wouldn’t have to take public responsibility.

In the OPSEU case, the Ontario Court of Appeal said that the Government of Ontario was trying to “buy” reduced class sizes by reducing teachers’ wages. Here, the Government of Manitoba is trying to use public sector wage reductions to “pay” for tax breaks. As Dr. Beaulieu testified, this places an unfair burden on the public sector.

(Public sector employees get paid less so that everybody else can keep more.)

And there is no question that the PSSA significantly impairs collective bargaining. Substantial interference in collective bargaining doesn’t mean total elimination. It is not what is left over that matters, it is what is taken away. And when wages are off the table, the evidence shows that collective bargaining in the Province is remarkably constrained.

Furthermore, the sustainability savings in Section 14 aren’t collective bargaining. Unions must go cap in hand to ask for permission. The Government (via the Treasury Board) holds all the cards.

Now to the conclusion on minimal impairment …


The government hasn’t met the test of minimal impairment in any respect. There is no evidence on the record that they even considered any other options, much less any less intrusive options.

As Justice Donald said in B.C. Teachers Federation,

It cannot be said that the government took ANY approach to minimally impair in the context, let alone a reasonable one.

3. The Final Balancing

This last one is relatively overlooked, mostly because most of the time, people have already lost on another part of the test before anyone gets to it. Besides, its kind of mushy – what exactly does “balancing the effects with the greater public good of the objectives” mean?

Anyway, here’s what Garth has to say:


Given how the Government has failed all the previous parts of this test, we don’t really need to be here. (True.) But broadly speaking, this element means that there must be a proportionality between the effects of the measures that limit the Charter right, and the objective that has been found to be sufficiently important.

The benefits achieved have to be worth the costs. The deleterious effects cannot outweigh any good the law does.

The PSSA doesn’t qualify. There can be no proportionality between its deleterious effects and the Government’s stated objectives, because the Government has no idea what good the PSSA does. They never calculated it. There was no meaningful discussion with Labour’s representatives about what the problem was or how to find less harmful solutions.

According to Dr. Hebdon, the PSSA will have significant deleterious and long-term effects on the collective bargaining process, by creating cynicism, interfering with unions’ internal democratic processes, causing dissension and harming relationships between the unions and its members, and causing a chilling effect on future rounds of collective bargaining.

There are, therefore, significant deleterious effects with nothing whatsoever to justify them.

The Government of Manitoba claims that the PSSA will benefit all Manitobans and will allow them to spend more on health services. This is completely speculative and there is no evidence to suggest that the PSSA has resulted in increased public spending on health services or anywhere else.

Even though the PSSA is not in force, it is negatively impacting everyone at every bargaining table in the Province.

In cases like Gordon, governments have been able to provide extensive economic evidence to show that there are actually significant benefits. Here, we have none.

In their written argument at paragraph 170, the Government suggests that the PSSA doesn’t got to the heart of Charter values. It is impossible to see how this can be so. The PSSA affects the working situations of over 110,000 Manitobans, almost 20% of the workforce. And, as Justice Dickson said in the Alberta Reference:

Work is one of the most fundamental aspects in a person’s life … significant in shaping the whole compendium of psychological, emotional, and physical elements of a person’s self-respect.

There is nothing more consistent with the essence of Charter values than that.

In OPSEU, the Court of Appeal said:

In its desire to reach an end it had already defined Ontario ran over the rights of its employees. … The impact was not just on the economic circumstances of education workers, but on their associational rights and the dignity, autonomy, and equality that comes with the exercise of that fundamental freedom.

In enacting the PSSA, the Government of Manitoba has essentially done the same thing. They ran over the rights of the unions and their members.

The deleterious effects of the PSSA are all out of proportion to the supposed public good achieved by its Charter-infringing measures.

The PSSA fails all aspects of the Oakes Test, and cannot be sustained by Section 1.

Whew. We are through Section 1. A little hard to listen to – reminders of the pain the PSSA has caused, but ultimately, very persuasive. To me, anyway.


If you have already tried to read Labour’s Reply Brief, you’ll already know how irritating reply can be. First, you have to point out what your opponent said, and then you have to explain why they are wrong. It involves a lot of jumping around from topic to topic, and both major and minor disagreements in many forms.

To save us all (but mostly myself) from too much irritation, I’m going to deal with the rest of these reply points in a summary way as possible. Here goes.


1. Labossiere’s Legal Opinion


My friend said that Kevin Rebeck’s request for information on January 31, 2017 showed a completely incorrect understanding of what they were entitled to, and that the unions thought that the Government was required to consult with unions (instead of just being the nice guys they now claim to be).

But Keith Labossiere gave an opinion in November of 2016, just after every judge in the British Columbia Court of Appeal decision in B.C. Teachers Federation said that pre-legislation consultation were relevant. 

It is reasonable to assume that now the Government of Manitoba thinks – oh-oh, now we have to consult.

Accordingly, the Public Services Compensation Committee considers Labossiere’s opinion, and suddenly starts planning their consultations with unions in their meeting of December 14, 2016, and sets out their “communications strategy”.

The dots are there to connect. The Government hasn’t put forward witnesses to confirm or deny it. Therefore, although there is no direct evidence as to what was in Labossiere’s opinion, the court has to decide based on the evidence available to it. The Government could have contradicted this conclusion if they had wanted to by waiving privilege in the opinion. They didn’t, and so they are stuck with this inference.

Yuck. Another reminder of the slime. The B.C. Court of Appeal in B.C. Teachers Federation all say pre-legislation consultations are relevant. The Government of Manitoba gets a legal opinion. It is reasonably inferred that that opinion says – hey people, you need to consult with the unions before you legislate. This is inconvenient for a government that has already made up its mind to legislate, and has already got a lot of the thing drafted. So, rather than do the right thing, and make those consultations meaningful, this Government of Manitoba decides to plot out how to pretend to consult with the unions, and what disingenuous nonsense to say to them so that they don’t figure it out.

2. Government Conduct v. Effect of Legislation

Confession: while it is true that Heather Leonoff did say that Labour hadn’t raised any government conduct that was separate and apart from effects of the legislation itself, I really don’t understand why that would matter. I think it has to do with some technicality about damages. In any event, she did raise it, so here’s Garth’s reply.


The Government claims that there is no government conduct in this case that amounts to substantial interference in collective bargaining, as opposed to the legislation itself.

But my friend failed to appreciate that we did differentiate between government conduct and the effects of the PSSA in our pleadings.

Conduct would include the passed-but-not proclaimed strategy.

And conduct would include mandates that became binding directives as a result of the threat and shadow posed by the retroactivity provisions of the PSSA. As demonstrated in the negotiations between the Manitoba Teachers Society and the Pembina Trails School Division, that’s exactly how the PSSA was interpreted.

The desired effect of Ms. Leonoff’s Elephant-in-the-Room (the un-proclaimed PSSA) was to have the PSSA apply anyway.

The Government of Manitoba was having its cake and eating it too.

3. The UMFA Negotiations


Contrary to what my friend claims, this was not a change in mandate. The University of Manitoba didn’t have a mandate from the Government of Manitoba. This was a new mandate that the Pallister Government decided to impose in the middle of negotiations and in direct opposition to the University’s own goals of attracting and retaining faculty through better wages.

The Government forced the University to commit an illegal act – an unfair labour practice. They dictated an and caused a strike.

If this isn’t a violation of UMFA’s freedom of association, nothing ever could be.

4. Negotiation between Manitoba Teachers and School Boards


My friend described this breakdown an election by the MTS to arbitrate, a mere choice.

This is not the evidence. It wasn’t the MTS’s choice. The MSBA called it off because they saw that continuing in the shadow of the PSSA was already damaging the relationship and they did not want to risk any more.

It was thus the Manitoba School Boards Association that walked away, not the Manitoba Teachers. It was the School Boards Association that thought that bargaining was broken.

My friend says – well that’s their conduct, not the Government’s. But that ignores the fact that it is the Government that put the MSBA in this position, including Minister Wishart’s unfortunate press conference.

(Remember? Where Minister Wishart said we’re limiting school boards to a 2% property tax increase, but that’s okay, because we have the PSSA? It’s covered in the testimony of Tom Paci.)

5. But They Were Just Mandates


The government claims that these were just mandates. And that if the unions didn’t like it, they could have gone on strike.

But employers, like the University of Manitoba and Brandon University, relied on the retroactivity in the PSSA to say that they were bound by the PSSA and could not ignore it.

And how realistic is it to say that they could have gone on strike? That isn’t going to end the problem. It isn’t going to change the PSSA. So, what? The unions will just have to hope that their employers will suddenly decide that they are not going to follow a law that they think is binding on them?

The PSSA will continue to speak loudly and firmly even if it isn’t proclaimed, rendering any strikes utterly futile.

6. Characterizing “Gains”


My friend, in her submissions, did not want to characterize the gains made by some of the unions because any characterization would not be good for her.

The union representatives were all in agreement and very clear. Any gains that were made in any agreements after the PSSA was passed were marginal at best. Dr. Hudson (UMFA) called them small, minimal, “best we could do in the circumstances”. Sheila Gordon referred to “severely watered-down terms”.

Besides, the Supreme Court of Canada in B.C. Health Services made it clear that it is not about what gains are made with what is left over. It is whether substantial interference results from what is taken away.

(He’s right, and Shannon and I will go into this a little bit more in a bit.)

With that, Smorang-the-Smasher has run out of words and sits down. I’m a little disappointed because he’s so fun to watch. But it quickly fades as I watch Shannon Carson getting up to hammer us home.

b. carson’s reply

As Shannon arranges her papers, I realize why I was so mad yesterday when Leonoff seemed to be attacking her. Carson is about ten years behind me, seniority-wise, and I’ve mentored so many younger lawyers that my instinct to protect them is almost reflexive.

I catch myself now, thinking – hey, Shannon’s a warrior in her own right. So stop playing mother hen, already. Stand back, shut-up, and just let her fight.

She did.

1. Expert Evidence on Collective Bargaining


We disagree with my friend’s reliance on the Other Guys’ testimony.

The Other Guy testified that changing the scope of bargaining doesn’t have any impact on the relative bargaining power. But, as he admitted, the Other Guy has never been to a bargaining table.

And I reiterate that the Other Guy’s testimony, for this and other reasons, had little to no value.

Furthermore, it is hard for anyone to claim that the PSSA does not have an impact on collective bargaining, when our evidence so clearly shows that there is a significant difference between agreements negotiated between the same parties in substantially the same circumstances before and after the PSSA was passed.

Although my friend denied that there will be any lasting effects, Dr. Hebdon testified about a study that demonstrated the chilling effects of wage restraint legislation on subsequent rounds of negotiation.

And, finally, while Dr. Hebdon did acknowledge that removing wages also affects the the employer’s bargaining power, he never said that the employer’s bargaining power was equally affected.

(No kidding. And, as I’ve said before, not only does taking wages off the table usually affect the union’s bargaining power more than the employer’s, it almost always tips the balance of bargaining power sharply in the employer’s favour. It certainly did here, in every round of collective bargaining covered by the PSSA.)

2. Conflating Outcome & Process


In her submissions, my friend suggested that when we argued that removing wages from the scope of bargaining was substantial interference, we were conflating process and outcome.

With respect, the test for substantial interference is:

(1) how important are wages, and

(2) what is the effect on the process of taking them away.

What happens to the process when you take wages away? Procedurally, they are pre-determined and unavailable, instead of being left to be bargained at the end. And tactically, they are not available for trading and compromise, and gains on wages cannot be achieved by striking.

I don’t understand the government’s accusation. We are not asking for wages to be set at a certain amount, nor asking for any particular gains.

All we want is to be able to have wages available for bargaining. Let us negotiate on wages. Let us negotiate on everything.

There is something that I have been meaning to sound off about, and it goes back to the Other Guy’s “theory” that changing the scope of bargaining doesn’t have any effect on the bargaining process itself. You can still bargain, you can still trade, you can still get gains (and in the case of unions, you can still strike).

I described this as saying, if you take turkey and stuffing away, it’s still Christmas Dinner, because you can still eat (see the Government’s Collective Bargaining Expert).

Intuitively, this theory doesn’t make sense, which is easy to see if you apply it to any old bargaining situation. If you are buying or selling a house, and the government comes in and fixes the price, the whole process changes, doesn’t it? Sure, you can still quibble about inspections, and closing dates, and other such trivial things, but when you take price off the table, it’s an entirely different negotiation.

Of course the Government of Manitoba wants to analyze negotiations under the PSSA in this limited way. Viewed through this very fictional lens, look, there is no interference, there can still be bargaining, they are bargaining away. But not only does that ignore the very real problem of the hard reality that, as Garth and Shannon have now each repeated, the Supreme Court of Canada in B.C. Health Services already made it clear that you look at what happens to the process based on what is taken away.

This boils down to – to determine whether there is substantial interference due to the measure imposed by the legislation, you look first at how well the collective bargaining goes with everything left in, and then compare it to what happens to collective bargaining process when whatever it is that the measure takes out is removed.

You do not, as the Government of Manitoba would have us do, ignore that something is taken out, and just look at what is left over to see whether you can still bargain about stuff.

I suppose it was worth a try, but thanks to Shannon, and Garth, and the Supreme Court of Canada, it was never going to work

3. Misinterpreting the Law on Freedom of Association

This was where I really started to smile. Look at my little grasshopper (even though she is Garth’s apprentice, not mine).

Carson is at that sweet spot in an advocate’s career when all the potential so clearly evident in the novice begins to be realized. She ahs absorbed all the procedure and practice of trial. She knows where to sit, when to get up and argue, and when to sit down. She’s organized, and thorough, and understands what parts and what to make of the law that she cites. With all that accomplished, this is the point when all her in-person style begins to flow out.

Style is individual, and Garth’s sharp and scary aggression has been obvious throughout. But it is now, when Shannon is not just reciting arguments that she has already written down, but is rather responding to Heather’s challenges and thinking things out, that Shannon-the-Hammer makes her presence fully felt. And that’s why I’m smiling, because from where I am sitting, The Hammer is going to be as frightening formidable as The Smasher has ever been.

This is good news for Labour, because when a retired Garth is playing the recorder and telling stories to his grandchildren, Labour’s rights will be in the good strong hands of Shannon-the-Hammer for decades to come.

Anyway, let’s hear what Shannon saying now …


The Defendant has argued that the Plaintiffs are claiming that governments cannot legislate on public sector wages as a matter of law.

This is not so. Our position is that on the facts the test of substantial interference has been met.

This has included references to B.C. Teachers Federation

(I lose what point Shannon was trying to make here, because Heather Leonoff gets up to object that this isn’t proper reply. Huh?

Reply is only improper if you are trying to bring up completely new arguments, instead of truly replying to what your opponent said.

But I’m pretty sure Shannon prefaced everything in this part with – the Defendant (i.e. Leonoff) said this, but we say this  … so I can’t see how this can be improper.

Inconvenient for Leonoff and company maybe, because it is pretty persuasive, but not at all improper reply.)

The Defendant claims that the Plaintiffs are trying to unduly fetter the authority of the legislature. But the legislature’s authority is fettered by the Charter, and nobody can argue with that.

We agree that pre-legislation consultations are relevant in the sense that B.C. Health Services mentioned – the circumstances that surrounded the development of the measures can be considered part of the assessment of how much damage the measure does (this is part two of the substantial interference test).

We also agree that the Supreme Court of Canada in B.C. Teachers Federation did not mean to accidentally overrule B.C. Health Services on pre-legislation consultations by ruling from the Bench.

The Supreme Court of Canada ruled from the Bench in B.C. Teachers Federation because they wanted to send a loud message:

Governments in Canada NEED TO STOP bringing legislation that interferes with collective bargaining. Appeals from the lower courts to us keep happening and they shouldn’t be.

We (the Supreme Court of Canada) have ruled that substantial interference with collective bargaining is unconstitutional.

Those days are over. So, STOP THIS NOW.

(Oh my, that was good.)

My friend also wondered why the law should be different in any respect, including consultations, for collective bargaining. The reason is that in the public sector, the government is the employer as well as the legislator. They are a participant in the very process that they are trying to control with this kind of legislation.

The Charter is the fetter on this kind of authority. And there is no worry of opening the floodgates to other contexts, because in no other context does this special case – where the government is both employer and legislator – take place.

4. Unmanageabilty of Pre-Legislation Consultations

I’m sure that somewhere before all this Shannon repeated that Labour’s position is that pre-legislation consultations aren’t relevant, aren’t required, and that the Supreme Court of Canada didn’t mean to adopt this portion of Justice Donald’s reasons in B.C. Teachers Federation. But, in the alternative, if the courts are going to say that pre-legislation consultations do matter …


While the Supreme Court did say in Mikisew Cree that consultations prior to legislation are rarely appropriate, that does not mean never. It depends on how you manage it. They can be dysfunctional. That doesn’t mean they always are.

In this case, the consultations were dysfunctional, but that was the Government of Manitoba’s fault. They chose how to conduct them. They cannot complain about them now.

Besides, the Government had already decided to legislate. They didn’t have an answer to the question of why they couldn’t have just left it to collective bargaining to figure out, so they never gave Labour an opportunity to discuss it during the pre-legislation consultations.

Those consultations were a sham in any event. All the Government of Manitoba was trying to do was get a rubber stamp for the PSSA.

(Yeah. This was just another game. Hey, if we consult, and then legislate, we might get away with it. We consulted, that’s all that’s required. So, the consultations didn’t work? Oh well, guess we have to go ahead with the PSSA anyway.)

5. Meredith, the ERA, and the Three Court of Appeal Decisions

The way Labour handled Meredith and the ERA (the Expenditure Restraint Act) is the one thing they did strategically that I wouldn’t have done. They tried to make distinguishing Meredith, the ERA, and the other case law relating to the ERA part of their opening statement and part of their argument in chief.  

I think this was the “take your opponents case away from them before they make it” strategy that worked so well for Susan Dawes in the Mandamus Application. But strategies, like most of this constitutional case law, are contingent on the context. They may work well most of the time. That doesn’t mean always.

In my view, because Meredith, the ERA, and the related cases are surrounded by so much convoluted context, it made it really hard to pre-empt whatever parts Heather Leonoff was going to mention in her argument.

First of all, you would have to anticipate correctly what and how Heather was going to rely on what Meredith and the three Court of Appeal cases said about the ERA. But there are so many aspects that Heather could have raised, that I would have waited to see what Heather actually said, and then responded only to that.

Secondly, because there is so much context to this topic, whenever Shannon talked about it in her opening statement and during Part I: The Law in their final argument, it took too long to explain and was too hard to follow. First, you had to set out the test, then, say what the ERA was and its context, then point out that the procedure in Meredith was upheld in the context of a broader labour relations scheme, that itself was held to be constitutionally inadequate, in a companion case to MeredithMPAO. (MPAO was, with SFL and Meredith itself, part of the New Labour Trilogy that built upon and enshrined further protection for collective bargaining, striking, and other union activities under Section 2(d) – Freedom of Association.)

Oh, ya, and after all that, you have to identify the point that the government might make, and then say why it is wrong.

I never followed Labour that far, because that part where the Pay Council process of Meredith found to be constitutional in the context of an unconstitutionally inadequate labour relations scheme as per MPAO – was consistently the part that made my head spin. It’s so-o-o-o confusing, especially since Meredith is about the ERA, but MPAO was about something else – a long-standing practice set out in a couple of statutes that the RCMP couldn’t unionize.

Thus, what I would have done instead is ignore Meredith, as well as the three ERA Court of Appeal cases that upheld legislation related to the ERA until after Heather said whatever she was going to say about these cases. This means that I would have waited until now, in Reply, and thus dealt with distinguishing away Meredith and the ERA only once and once only.

To me, not only is this far less confusing, dealing with these issues earlier, tended to give them an importance that I don’t think they deserved. Yes, Heather was going to rely on these cases and probably a lot. But they don’t matter, because their context is so different, so let us not trouble ourselves with them much. We can distinguish them away in an unimportant afterthought.

However, when I did finally deal with all this, I would have explained what the ERA was, and then dealt with those cases and the ERA the same way that Labour did in their Reply Brief – see pages 20-34.

I told you I was only going to tackle Meredith once. So, for your benefit, here is my summary (which is of course cribbed from Labour’s written submissions, in chief and in reply.)

a) The ERA 

The Expenditure Restraint Act became law on March 12, 2009. It was brought by the Government of Canada in response to the 2008 Financial Crisis.

The ERA included wage restraints (and it was because the ERA included wages restraints that all of the case law on the ERA becomes so relevant to the Government of Manitoba’s defence of the PSSA). Those wage restraints were as follows:

Section 16: the rates of pay for employees are to be increased, or are deemed to have been increased, as the case may be, by the following percentages for any 12-month period that begins during any of the following fiscal years:

(a) the 2006–2007 fiscal year, 2.5%;

(b) the 2007–2008 fiscal year, 2.3%;

(c) the 2008–2009 fiscal year, 1.5%;

(d) the 2009–2010 fiscal year, 1.5%; and

(e) the 2010–2011 fiscal year, 1.5%.

The Government of Canada attempted to reach agreements under mandates based on these restrictions from the time the ERA was drafted in November 2008, until it was enacted in March of 2009. The unions objected to this process as being negotiation with a gun to their heads. The courts disagreed, and instead, tended to take this as an effort on the Government’s part to avoid legislating wages, and give priority to collective bargaining.

Ultimately however, the most important contextual factor running through the decisions in all of the court of appeal cases on the ERA is that the Government of Canada brought this legislation in response to a truly legitimate and significant financial crisis in a two-pronged approach to both stimulate the economy and limit expenditures (and thus their entire fiscal strategy was directed at the same problem and in the same direction).

b) The Decision in Meredith

This was the only case based on the ERA that reached the Supreme Court of Canada: Meredith v. Canada [2015] 1 SCR 125.

A lot of the confusion this case causes arises from the special situation of the RCMP, whose freedom of association was denied by law. Because they couldn’t associate, and so they couldn’t have a union, the RCMP had a Pay Council Process instead. Because not being able to form a union was held to be a violation of Section 2(d) – Freedom of Association in MPAO, this Pay Council Process was part of a larger, unconstitutionally inadequate scheme of labour relations – the non-unionized relationship between the RCMP and the Government of Canada. (And this is why Labour always includes this limitation and qualification whenever they discuss anything to do the Pay Council.)

However, since the Plaintiff in Meredith didn’t challenge the Pay Council Process itself as unconstitutional, the question in Meredith was only whether the ERA was unconstitutional because it substantially interfered with the Pay Council Process.

Because this Pay Council Process was pretty limited to begin with, the ERA didn’t have a significant impact on the Pay Council Process and didn’t prevent it from going forward. Thus, the ERA didn’t interfere with the Pay Council Process.

The ERA was also upheld as constitutional for other reasons, including that the limits in the ERA were shared by all public servants, were consistent with the going rate reached in agreements concluded elsewhere in the core public administration, and did not preclude consultation on other compensation-related issues, either in the past or the future.

c) The Defendant Overextends Meredith (Reply Brief, pp. 20-22)

The Government of Manitoba relied on Meredith to suggest that wage restraint legislation does not (ever) substantially interfere with collective bargaining. (This is of course wrong. Everything is contextual, so neither side can ever really say that this or that kind of limitation will always or will never be substantial interference. It always depends, and depends on everything else that is going on.)

This ignores the fact that the ERA dealt with the abbreviated RCMP Pay Council Process, not true collective bargaining. Therefore, the Supreme Court of Canada’s findings in Meredith have nothing to do with whether removing wages from true collective bargaining constitutes substantial interference (unlike the PSSA, where wages are removed from all collective bargaining in Manitoba).

Furthermore, even though the Government of Canada argued that because the ERA was time-limited and broad-based (applied to all of the public sector), these were factors in its favour, the Supreme Court of Canada never included these factors as relevant reasons in favour of the ERA being constitutional (and therefore, when the Government of Manitoba tries to rely on these two aspects of the PSSA, they are wasting their time; these factors aren’t relevant).

And finally, when the Government of Manitoba relies on the fact that the Supreme Court of Canada referred to the capped wages in Meredith, it misses the point. It is not that the caps were similar to outcomes that occurred in connection with collective bargaining pursuant to mandates, it was, rather, that these outcomes were similar to those that occurred when there wasn’t any interference in collective bargaining.

(In other words, even though there were wage restraints with the ERA, the results they achieved were still comparable to the ‘going rates’ where there had been free and meaningful collective bargaining, without restraints in place.

There’s some quibbling here, because although there was collective bargaining before the ERA was passed (and proclaimed), it is not clear, to me anyway, just how free that was, because they knew the ERA was coming, and the unions did complain that the threat of pending had some impact on the pre-legislation bargaining.

Whatever the case, the Government of Manitoba is going to have a hard time arguing that any analogous “collective bargaining before legislating” took place here. There was no collective bargaining before the PSSA was passed. And, whatever collective bargaining that took place after the PSSA was passed was effectively bound by the PSSA because, thanks to their quest for certainty, the government was effectively applying the PSSA even though it had not been proclaimed.)


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See how complicated this all is? I think that they had to make these arguments (and there is more on the ERA coming up). But because it is so complicated, I wouldn’t have said anything any earlier, except maybe – Meredith is so very different from this context, and easily distinguishable, which is so vague and limited, that I probably wouldn’t have said anything at all. Until now. In reply.

d) The Court of Appeal Decisions on the ERA are Distinguishable (Reply Brief, pp. 22-27 )

The three court of appeal cases that upheld the ERA as constitutional are:

These cases are different from the situation in the PSSA because:

i) The CBC Case


  1. The court noted that the ERA did NOT impose salary freezes, and it said salary freezes would be more draconian.
  2. Like Meredith, the court relied on the fact that the ERA set wage levels that were consistent with the ‘going rate’ in other public sector bargaining.
  3. Unlike the PSSA, the ERA did not eliminate bargaining on ALL monetary issues.
  4. The section of the ERA that allowed the Government of Canada to exempt employers on a case by case basis wasn’t considered as part of the analysis of whether the ERA was constitutional, but rather only whether it would have helped the ERA meet a Section 1 defence.

ii) The Dockyards Case

In Dockyards:

  1. The ERA didn’t limit future bargaining on any term in the collective agreement except for wages in 2006 (a special one-year limit on the ERA’s application to dockyards employees only).
  2. The Government of Canada chose a negotiate first, legislate second approach.
  3. The Government of Canada used its best efforts to consult in good faith with all parties, including the Dockyards Trades Council.

Of course, the Government of Manitoba did none of these things with respect to the PSSA.

Furthermore, the B.C. Court of Appeal also pointed to the looming financial crisis, making it clear that this mattered to the question of whether the ERA was constitutional, as well as whether the ERA could be saved by a Section 1 defence.



  1. The court in Dockyards said they couldn’t distinguish Meredith because both cases dealt with wage rollbacks under the same piece of legislation, in the same context. But, the PSSA does not rollback wages and is a different piece of legislation in a different time and place. Thus, Meredith certainly can be distinguished here.
  2. Because Meredith dealt with the Pay Council Process, and not full collective bargaining, its analysis should not be extended as a matter of broad principle to cases, like this one, that deal with true collective bargaining.
  3. What the B.C. Court of Appeal says in Dockyards (which the Government of Manitoba relies on in their argument) about substantial interference being “best understood in the historical context of the purpose of workplace association” is contrary to how the Supreme Court of Canada considered this historical context in B.C. Health Services. A better and more correct summary is set out in the MPAO case. (Oooh, this is the height of lawyerly quibbling over how to split hairs. Which case sets out the better description of the historical context? Heather started it, and of course, the lawyers pick the ones that suits their case the best. And no, I’m not going to look it up and compare to analyze or conclude who’s right. I don’t care. And I don’t think Justice McKelvey will either.) 
  4. The Government of Manitoba quoted a statement by the trial judge in Dockyards that is clearly wrong, because it applies a standard of impossibility, instead of substantial interference.
  5. Finally, everything in Dockyards is a little suspect because it was decided after the majority of the B.C. Court of Appeal upheld the legislation in B.C. Teachers Federation, but before they were overruled by the Supreme Court of Canada. (Yeah, here’s a real fun part of lawyering. Not. The majority of the B.C. Court of Appeal in B.C. Teachers Federation that there is no substantial interference. Then the same court hears Dockyards, so presumably they take heed of and try to be consistent with what they said in the Teachers Federation case. And then, the Supreme Court of Canada tells them – so sorry, all that stuff you said was wrong.)

iii) Gordon

In Gordon:

  1. During the pre-ERA phase of bargaining, everything, including wages, was under discussion and real progress was made on wages, which demonstrates that there was a meaningful process. (None of that would apply to the PSSA.)
  2. While the Government of Canada engaged in hard bargaining prior to the introduction of the ERA, the bargaining was still conducted in good faith. Therefore, there was still a meaningful process of negotiation, even though the government ultimately legislated on compensation. In contrast, the Government of Manitoba engaged in NO collective bargaining prior to the enactment of the PSSA.

e) Besides, the Context of the ERA was SO-O-O-O-O Different from the PSSA (Reply Brief, pp. 27-34)

First of all, there are so-o-o-o many differences between the ERA and the PSSA. Look – you can find Labour’s Chart that outlines all these differences from Paragraph 144 of their Written Argument for Trial here.

And besides, comparisons made by the Government of Manitoba between the ERA and the PSSA are wrong because:

  1. The time-limited nature of the legislation is legally irrelevant. The case law is clear that permanent removal is not required. Allowing the possibility of “catch-up” provisions doesn’t help with the Section 2(d) analysis, though it may be relevant to a Section 1 defence.
  2. The PSSA imposes wage freezes and arbitrary outcomes. The ERA did not.
  3. While the ERA imposed some restrictions on “additional remuneration” the PSSA eliminates all monetary matters – “ … or benefit of any kind to be paid or provided to an employee.”
  4. Even though both the ERA and the PSSA applied to the whole public sector, this has nothing to do with whether either law is unconstitutional or not. “A bad law will not be saved merely because it operates equally upon those to whom it has application.” (See B.C. Health Services, quoting Andrews v. Law Society of B.C.)
  5. The 21 collective agreements reached in the shadow of the PSSA were not freely negotiated through meaningful collective bargaining. (Yeah. That stupid passed-but-not proclaimed elephant was in the room, on the table, and squashing everything.)
  6. The scope of bargaining that can occur under the PSSA is not exactly wide, and that’s a misnomer anyway. Wide or not, doesn’t matter. The question is, what is taken away, and how much of a negative impact does that taking away have. No one cares how much time you can spend on what is left over.
  7. Nobody knows how many people will still be entitled to step increases under the PSSA. The government said “many” but there wasn’t any evidence to prove that. And those increases were already negotiated anyway, so all this really means is that the PSSA doesn’t change existing terms. (Whoopee.)
  8. And finally (hooray) while the PSSA doesn’t specifically remove the right to strike, Dr. Hebdon’s evidence was that strikes become meaningless under the PSSA.

There is more, but it’s even more technical and tedious than all that was. So, I skipped it. You can find it at pages 34-39 of the Reply Brief.


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Honestly, I only did all of this for legal completeness. For non-lawyers, parties, and observers, the only we really need to remember about Meredith, the ERA, and any cases which found that the ERA did not violate Section 2(d) of the Charter, is that the ERA was so very different from the PSSA, most notably because there was, unquestionably an actual financial emergency – the 2008 meltdown of the sub-prime mortgage market. Additionally, the two key differences between the ERA and the PSSA were: (1) the ERA‘s limits were consistent with “going rates” set through what was accepted by the court as meaningful collective bargaining, the PSSA‘s weren’t; and (2) the ERA didn’t have any 0% wage increases, the PSSA had two.

Because everything about substantial interference depends on the context, which includes the terms of the acts, and because the ERA‘s context was so different, anything the ERA cases say about wage restraints becomes virtually meaningless and inapplicable to the facts of this case. (Spoiler alert: to my great satisfaction, this is, in the end, almost exactly what Justice McKelvey ends up saying about the ERA and the Meredith  mess.)

6. International Law and ILO Decisions 

As Carson starts to argue that they never suggested that international law is binding in Manitoba, nor that Justice McKelvey is required to follow everything the International Labour Organization has ever said in any decision it ever gave on collective bargaining, Heather Leonoff gets up to object again.

I’m really confused this time, because this time, I am absolutely, 100% positive that Heather raised this during the government’s final argument, and therefore it is certainly something that Labour has a right to reply to.

I cannot remember exactly what this objection was, but I don’t think it was about objecting. I think it was a reaction to how hard Shannon hit the Government on its arguments on the ERA and Meredith. It was a pretty thorough smashing, in true Smorang-style, and I think Heather was smarting and wanted some retaliation.

Anyway, the objection essentially gets ignored by everybody, including Justice McKelvey, and, getting more and more animated, Shannon says:


International law is used as an interpretive tool. But it is not as though it is spent, so that once it is used to construct the substantial interference test, as the Supreme Court did in B.C. Health Services, now we never use it again.

International law is out there. It can always be used to interpret the Charter and to shed light on the Charter’s rights, which is exactly why we mention it.

(Exactly. I’m chuckling again here, because I thought the spent argument – hey, you used International Law to make the test, so we’re done with it – was kind of ridiculous too.)

7. Finally, la Fin: Ripeness for Decision

Just as Heather’s final point was that the PSSA was not yet proclaimed, and so not ready for a review by Justice McKelvey, Shannon ended Labour’s Reply by pointing out the many ways that this passed-but-not-proclaimed garbage just doesn’t matter.


Courts cannot order the government to proclaim the PSSA because these executive acts are not reviewable under the Charter. But, here, even though the PSSA has not been proclaimed, it has been enacted with retroactivity. This makes the PSSA indirectly effective anyway.

It is not helpful to compare the PSSA with mandates and hard bargaining because a law is greater than a mandate. Employers can move from mandates. Laws are fixed and binding.

By enacting the PSSA, the Government of Manitoba has been speaking at every bargaining table in the Province. My friend claims that all that is happening is that employers are deciding for themselves to follow the PSSA’s “mandate” strictly. But that simply is not so.

Employers believe that they are legally bound to follow the PSSA. And as Teri Kindrat warned Arlingtonhaus, there will be dire consequences if they dare to disobey – the Government will remove their funding. (But, make sure you don’t tell the union that this is why you are doing this.)

And it doesn’t matter that the Government has Bill 9 and suggests that the PSSA might get better some day. Bill 9 has not even been enacted, much less proclaimed.

The PSSA is hurting the Plaintiffs now. These legalistic and technical distinctions mean nothing at the bargaining table.

Current harm cries out for current relief and this court should not let this damage go on.

The Government of Manitoba claims that because the PSSA has not been proclaimed, the uncertain legal status can shield it from consideration. The uncertainty of Bill 9 can not then also be used as a sword to stave off the same consideration on the basis that the PSSA might be amended some day.

Any piece of legislation can ALWAYS be amended at any time, and governments could always say – oh just wait until we make the law better.

If the court accepted the Government of Manitoba’s argument, no law would ever be ripe for a constitutional challenge, because any government could always say – but we’re going to amend it some day.

Oh yeah. That was great. And although there were a few little tidbits after, I am going to leave it here.

• • • • • • • • • • • • • • • • • • • • • • • • • • • • • •

So, was that fun? Perhaps  you are like me and are happy that these long arguments are done.

With all of that over, it is time to see what Justice McKelvey made of it: The Decision is in.  (Spoiler Alert: Labour won.)

But, before that, I have some  editorial comments in an aside first. Check them out in: The Onion of Outrage.

The Trial Begins

Setting the scene in Courtroom #210 as the trial of MFL v. Manitoba begins. We get some background and meet the players.

Opening Statements

The proceedings begin with opening statements. Here, the lawyers for each side give us an outline of the course they are going to take (and why it is going to take 13 days to get there).

The Testimony of Kevin Rebeck

The President of the Manitoba Federation of Labour testifies about consultations between the government and some Labour leaders prior to the PSSA being passed. They weren’t very fruitful, and there seems to have been some question as to whether the government was being truthful.

Passed but Not Proclaimed?

Why is the government waiting to proclaim the PSSA? I thought there was a financial emergency, and dire warnings of our precarious fiscal position. But it has been 2 1/2 years. Don’t they need it yet?

The Testimony of Elizabeth Carlyle

Elizabeth Carlyle gets cross-examined about what happened in a negotiation between CUPE and the Winnipeg School Division. It wasn’t a lot, and it doesn’t sound as though it was very good.

The Testimony of Dr. Mark Hudson

Remember when the faculty at the University of Manitoba when on strike in November of 2016? Dr. Mark Hudson is here to tell us why it happened. And he fills us in on what was happening between the University and the Province behind the scenes.

The Testimony of Tom Paci

Tom Paci appears on behalf of the Manitoba Teachers Society. His story? A quest for justice for Manitoba’s 15,000 teachers and an appeal to the gods of justice – how can we be bound by the PSSA when it is not law?

Indirect Taxing & Discriminatory Taxation

If a tax by any other name would be as taxing, could wage freezes be indirect taxation? And if members of public sector unions are paying more in taxes to support public services, would this qualify as discriminatory taxation?

The Testimony of Michelle Gawronsky

The leader of the Manitoba Government and General Employees Union recounts her experiences since the advent of the PSSA. Everything she says about her automatic approach to understanding concerns and finding ways to solve problems makes me think ” leader, leader, this is a great leader.”

The Super Six Speak

Six experienced union negotiators come to tell us about what has been happening in their collective bargaining worlds. We learn more about what the PSSA means for public sector unions and their collective agreements.

Labour’s Collective Bargaining Expert

Dr. Robert Hebdon testifies about the impact of the PSSA on collective bargaining in Manitoba’s public sector. It isn’t good.

The Testimony of Sheila Gordon

We end the union tales of collective bargaining under the PSSA in passed-but-not-proclaimed limbo with MGEU’s GEMA. Sheila Gordon, MGEU’s senior negotiator was there. And she is here to tell us how those negotiations did not go anywhere.

Labour’s Read-ins and One Last Reveal

You never know what read-ins from discovery might reveal.

The Testimony of Richard Groen

Richard Groen, an Assistant Deputy Minister from the Ministry of Finance, testifies about the Province’s budgets and such.

I was expecting him to demonstrate what all the financial fuss in 2017 was about, you know, why our financial ship was sinking so much that we needed all hands on deck. But …

A No-Compete Treat for the Labour Market?

I don’t understand why the government doesn’t think it should have to compete in its own labour market. It does everywhere else.

The Testimony of Garry Steski

Is it wrong to admit that before this I didn’t really know what a bond market was? Well, I do now, and we learn a little about how Manitoba’s bonds were affected by the fiscal challenges in 2016. Or not.

Bean Counters, Businessmen & Business of Government

If businessmen go into government to bring the principles of good business to government, then shouldn’t they act like good businessmen when they get there?

The Government’s Collective Bargaining Expert

It is best to talk about what happened here as little as possible. So we’ll talk a bit about the importance of turkey instead.

The Testimony of Aurel Tess

How a short day of seemingly tedious technical testimony on Manitoba’s Summary Financial Statements turned into a most unpleasant surprise.

Politicizing the Provincial Comptroller

Ok, Manitoba. Politicizing the Office of the Provincial Comptroller?

That takes the poop-cake.

The Government’s Economics Expert

The government’s economics expert, Dr. Livio Di Matteo, has a motto he lives by: Agimus Meliora – Let us do better.

It makes me wonder, Manitoba, can’t we do better than the PSSA?

Labour’s Economics Expert

Dr. Eugene “the Earnest” Beaulieu testifies that the PSSA is not only not necessary, it is a harsh measure that puts an unfair burden on public employees.

Bye Bye, Dumbo

Let’s take one last look at the Elephant in the Room, and then say goodbye.

The Mandamus Application

A day of argument about whether a statute that says “the Minister SHALL FORTHWITH” means that the Minister can decide not to do something and make up his own reasons for why he shouldn’t.

Decision on the Mandamus Application

Justice Keyser, the judge on the Mandamus Application, has spoken. Here’s a hint – MGEU wins.

Bill 9: We’re Gaming Again …

Before we begin all the good stuff, Garth Smorang has some objections to yet another litigation game the Government of Manitoba is playing.

Labour’s Final Argument

Labour’s last stand. Shannon-the-Hammer and Smorang-the-Smasher pull it all together and wrap it all up.

There is an awful lot of it, so Labour’s final arguments have been separated into four separate posts, which start here …

Butt-First Buffoonery

How did the Government of Manitoba get to such an embarrassing PSSA place? They backed into it.

The Government’s Final Argument

Forget the Elephant-in-the-Room.The Government of Manitoba has got many other ways to try to move the goalposts, as they try to change the game.

Kind of seems like they know they are losing.

Labour Replies

The Finale of the Finale. Labour replies.

(This means we are finally done. At least with the evidence and arguments.)

The Onion of Outrage

Why am I here? Why spend so much watching lawyers and judges and reading endless cases? It’s a pretty simple answer.

I was mad.

The Decision is In!!!

The Honourable Justice Joan McKelvey has ruled. Labour won. The PSSA is unconstitutional.

This is what she decided and why.

What Have We Learned?

There’s lots to discover from considering Justice McKelvey’s decision, and not just for labour lawyers. Let’s take a look at what we have learned.